May 11, 2010

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A federal judge has ruled that a northern Indiana school district shouldn’t have disciplined two high school girls who posted racy online photos of themselves posing with phallic lollipops and simulating sexual acts because the pictures were outside of school and are protected by the First Amendment.

The case tests whether school administrators can stretch beyond campus limits and regulate out-of-school conduct. U.S. Chief Judge Philip Simon in the Northern District of Indiana ruled Wednesday in T.V. and M.K. v. Smith-Green Community School Corp. and Austin Couch, No. 1:09-cv-00290.

The two girls, ages 15 and 16, were sophomores at Churubusco High School when the incident happened during the summer of 2009. The girls were at two different sleepovers with friends when they took pictures of themselves pretending to kiss or lick a large multi-colored novelty phallus-shaped lollipop, as well as pictures of themselves in lingerie with dollar bills tucked into their clothing. They posted the pictures on their Myspace and Facebook pages, which were visible to their online friends.

Though the girls didn’t bring the pictures to the 400-person school, other parents and staff members brought the online images to the attention of the superintendent and principal on claims they were disrupting and causing concern in the school. Smith-Green has an athletic and extracurricular Code of Conduct in place that bars students that participate in those activities from behaving in ways that may bring discredit to the school or disrupt school discipline, and in response Principal Austin Couch suspended them from extracurricular and co-curricular activities. He agreed to reduce the girls’ punishment by 25 percent if they attended counseling sessions and apologized to the athletic board. They agreed and received reduced punishment – missing six volleyball games.

Challenging that punishment, the girls’ parents filed the federal suit against the district claiming that the school’s policy is unconstitutional and needs to be altered or removed. In response to the lawsuit, Smith-Green has stated that the pictures were obscene and constituted child pornography and as such are not protected speech under the First Amendment.

Chief Judge Simon heard arguments on the case in late May and in his 38-page ruling Wednesday, he disagreed with the school and found the photos should be protected despite the suggestive and racy nature.

“The case poses timely questions about the limits school officials can place on out of school speech by students in the information age where Twitter, Facebook, Myspace, texts, and the like rule the day,” Chief Judge Simon wrote. “Let’s be honest about it: the speech in this case doesn’t exactly call to mind high-minded civic discourse about current events. And one could reasonably question the wisdom of making a federal case out of a 6-game suspension from a high school volleyball schedule. But for better or worse, that’s what this case is about and it is now ripe for disposition.”

Though the record supports the argument that the photos were juvenile and silly, Chief Judge Simon found the conduct was intended to be humorous to those teenagers who might view them online and that the Supreme Court of the United States has held that kind of “expressive” conduct is protected under the First Amendment. The judge ruled that the photos can’t be considered obscene or along the lines of sexual conduct, child exploitation, or child pornography, according to state or federal law.

While the SCOTUS hasn’t yet determined whether off-campus speech posted on the Internet that subsequently makes its way onto campus can be regulated by school officials, Chief Judge Simon looked to other federal courts that have assumed a 1969 precedent protecting that expressive conduct off campus applies in this situation.

The judge determined the school policies are vague and overbroad and are therefore unconstitutional in permitting discipline based on the principal’s conclusion that T.V. and M.K. had brought “discredit or dishonor” to themselves and the school. He issued an injunction against the school from enforcing that standard.

“I wish the case involved more important and worthwhile speech on the parts of the students, but then of course a school’s well-intentioned but unconstitutional punishment of that speech would be all the more regrettable," he wrote.

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Michael Hoskins joined Indiana Lawyer in May 2006 and mostly covers the state and federal court systems. He’s received awards from the Indiana Chapter of the Society of Professional Journalists for his work covering the state's juvenile justice system, the federal immigration court system, wrongful conviction issues, and long-running lawsuits regarding prison conditions.

He came from the Daily Journal in Johnson County, where he was a general assignment reporter covering courts and legal issues. Before moving to Indiana in 2004 from southeast Michigan, Hoskins freelanced for the Detroit Free Press and worked for the Spinal Column Newsweekly after graduating with a bachelor’s degree in journalism from Oakland University in 2001. He currently lives in Greenwood with his wife, Susanne, and volunteers with the Juvenile Diabetes Research Foundation.